All items from Impudent Bankruptcy Lawyer

  Interesting statistic:  a litigant has a 1% or less chance of convincing the U.S. Supreme Court to review his, her or its burning legal issue that all other appellate courts have rejected, dismissed or pooh-poohed.  Don’t believe me? Look here:
    As of today (December 15, 2014), the U.S. Supreme Court has accepted five—count ‘em, five—different bankruptcy issues to hear in its 2014-2015 term.  Depending upon your perspective, this is either like hitting a big-bucks lottery, or suffering the consequences of the old Chinese curse “May everything you wish for come true”.  In addition, the justices have decided, on January 9, 2015, to confer on whether to accept another bankruptcy issue on their docket of cases to hear and decide.
   Here are the five issues that the SCOTUS has agreed to decide, and the one it will consider in mid-January, in no particular order of importance:

Posted 3 days 14 hours ago

What Has Gone Before
     Back in April, I posted about the U.S. Supreme Court's denial of certiorari on an unpublished order of the 11th Circuit Court of Appeals, in which the 11th Circuit followed a previous unpublished decision that allowed wholly unsecured liens to be "stripped off" in Chapter 7, using 11 U.S.C. §§506(a) & (e). As I discussed in that post, the 11th Circuit interpreted Dewsnup v. Timm, 502 U.S. 410 (1992) to be limited to partially secured first mortgages, and followed its own precedent  -- handed down before Dewsnup v. Timm --  in ruling that 11 U.S.C. §506 could be used to void wholly unsecured mortgages and liens in Chapter 7. See Folendore v. United States Small Bus. Admin., 862 F.2d 1537 (11th Cir. 1989).

Posted 26 weeks 20 hours ago

     This morning, on June 9, 2014, the U.S. Supreme Court issued its unanimous decision in Executive Benefits Agency  v. Arkinson, settling an issue that has plagued federal courts on all levels since the SCOTUS’s 2011 decision in Stern v. Marshall, 564 U.S. ___, 131 S. Ct. 2594 (2011):
Does the bankruptcy court violate Article III of the U.S. Constitution or Title 28 of the United States Code if it issues proposed findings and rulings on the type of issue identified in Stern v. Marshall as “core” under the bankruptcy statutory scheme, but beyond the tolerance of Article III if the bankruptcy court makes final findings of fact and rulings of law?
The Basics: Bankruptcy jurisdiction, since 1984, has divided issues into two categories: “core” matters spelled out in 28 U.S.C. §157(b)(2), which involve matters “arising in” a bankruptcy case and that a bankruptcy court would be expected to decide as part of the bankruptcy case (i.e., deciding whether proofs of claim are allowed, adjudicating the debtor’s discharge or the dischargeability of certain debts, confirming plans of reorganization); and “non-core” matters, which are matters “related to” the bankruptcy case. 

Posted 27 weeks 3 days ago

  In high school, my English teacher tasked me with memorizing and reciting a monologue from Shakespeare’s famous "Scottish Play", Macbeth. The monologue – the title character delivered it -- came from Act V, Scene 5, after Lady Macbeth’s own guilt catches up with her and takes her own life.  Although I sometimes confuse my own children’s names, I can still recall – and spout out instantly -- the lines I memorized and recited in front of the class some 42 years ago:

Posted 31 weeks 15 hours ago

     Last month, Judge William Hillman of the Boston Bankruptcy Court, in In re Maria A. D’Italia, Case No. 13-16051-WCH (March 18, 2014), confronted the following questions:  if a debtor signs a waiver of homestead rights in a guarantee, does that waiver then either: (a) release or subordinate the debtor's homestead vis-à-vis the creditor’s judgment and execution based on the debtor’s guarantee liability;  or (b) prohibit the debtor from avoiding the creditor’s execution on her home as a “judicial lien” under 11 U.S.C. §522(f)(1)?
     Judge Hillman answered both questions in the negative. To understand his answers, let’s review the homestead law in Massachusetts.
Massachusetts Homestead Basics

Posted 35 weeks 6 days ago

      Chapter 13 is not just for consumers. An individual in a sole proprietorship (or who is engaged in some business activity, such as renting properties as a landlord) has Chapter 13 available to him or her, provided that he or she meets the debt limits in 11 U.S.C. §109(e) and has regular income (either via the business activities or from other sources, such as separate employment). Chapter 13 is not available to partnerships (although individual partners may file), corporations or LLCs that operate businesses.

Posted 37 weeks 17 hours ago

     On March 31, 2014, the Supreme Court of the United States denied certiorari in Bank of America, N.A. v. Sinkfield, Petition No. 13-700. To put in terms appropriate to Major League Baseball’s opening day, this was the equivalent of Casey’s mighty whiff at strike three in the ninth inning, with the bases loaded, a full count, and the chance for a walk-off win.

Posted 37 weeks 2 days ago

Law v. Siegel  (U.S. Supreme Court opinion March 4, 2014)Exemptions Safe From Bankruptcy Court’s “Adjustment”Kevin C.

Posted 41 weeks 1 day ago

Kevin C. McGee, PartnerSeder & Chandler, LLP339 Main Street, 3rd FloorWorcester, MA 01608

  • The Stern v. Marshall Facts:

Posted 2 years 1 week ago

FIRST LESSON: “A” is for “Avoidance” and “Abandonment”

DISCLAIMER:  Nothing on this blog is intended to be specific or complete legal advice and is for general informational purposes only. In other words, you are only getting the tip of the iceberg in this blog – call and schedule a consultation with me at (508) 757-7721 ext. 112 if you think what you read here might apply to you and your situation. 
First, know that the bankruptcy law and Webster’s Dictionary have different definitions of “avoidance” and “abandonment”. The two terms also describe very different powers that a trustee in bankruptcy may use in your case.

Posted 2 years 20 weeks ago